December 2009 - January 2010 - Administrative Office of the District

The 13th Judicial District Attorney
Reporter
Issue 8 Dec 09/Jan 2010
13th Judicial
Covering Cibola, Sandoval, and Valencia Counties
District Attorney
Martinez Message
Reporter
333 Rio Rancho Blvd.
Ste. 201
Rio Rancho, NM 87124
Legal Editors
Bob Cates
[email protected]
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INSIDE:
Pages:
Martinez Message
Legal Brief
3
Legal Corner
4
Profile
5
High Profile Case
5
Around the Water
Cooler
6
Profile on:
Leslie R. Herbst
Cibola County
Senior Trial Attorney
I would like to begin by taking this moment to pay a commemorative tribute to the loss of some
well respected and honorable community leaders. Just to name a few: New Mexico‟s three-term
Governor Bruce King, Kenneth Brown former 13th Judicial District Judge, Sergeant Joseph Anthony “Joe” Harris, Sandoval County Sheriff‟s Department, Detective Lieutenant James C. Purdy,
Valencia County Sheriff‟s Department, and my own personal loss with the passing of my Mother
Cordelia Lily Sandoval Martinez
This year was met head-on with an economic crisis, budget cuts, critical decision-making and a
passion to do better. As any other year, 2009 had its challenges, disappointments, and triumphs. In spite of any hurdles that came our way we met them with a strong positive direction
to move forward. As quoted by Dr. Martin Luther King, “The ultimate measure of a man is not
where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy.” The year began with a newly elected United States President taking the
oath of office and the great honor of being re-elected to my third term as 13th Judicial District
Attorney. As your District Attorney, I can honestly say there are no words to describe the rewarding experience in holding this honorable position.
It is an outstanding privilege to have this opportunity to protect and serve our community. This
is why, during the course of the year, I was hands on with cases by meeting with each prosecutor each month to discuss each case and offer support and information as required. My personal mission is to lower crime so you, your family, friends and neighbors may have safer communities. There is a great concern for awareness on crime that affects the very heart of our
communities, neighborhoods and personal lives. With this, I would like to challenge representatives, community leaders and citizens across the political and professional spectrum to join me
in the Fight Against Crime. All of us have a great responsibility and obligation to each other to
meet this challenge in 2010. We must pull our resources together to combat the broad range of
social afflictions that ultimately effect lives, place financial burdens, and hurt many victims of
unnecessary crimes. I strongly urge continued education within our communities, schools, businesses, as well as, all Government and independent agencies. With the knowledge and extensive
experience I have acquired as District Attorney, it has only broadened and enhanced my efforts
to keep working in achieving safer communities. The 13th Judicial District‟s team of prosecutors
is dedicated and will fervently prosecute those that have committed crimes against our society.
There is no quick and easy solution to stop crime but I ask that my 2010 challenge be met.
I am very pleased that effort was made to strengthen anti-gang laws in the State of New Mexico.
You may ask why such an effort would be necessary. What makes New Mexico susceptible to
gang crime --it‟s the only state in the southwest that has not enacted some form of gang legislation. With this effort we have jumped on it and made every effort to not only create stronger
laws in our 2009 legislation, but create a better understanding through public awareness. The
goal was to give law enforcement the much needed tools to combat this growing menace related
to crimes in our communities. We further extended our effort by hosting „The 13 th Judicial District Drugs, Gangs and Prosecution conference.‟ Our goal was to emphasize the value of collaboration among Local Law Enforcement and the District Attorney‟s Office. We made it a point to
increase investigating procedures and prosecute drug trafficking and gang activity. The conference was successful and attendance was at full capacity. At the end we held a public forum to
give each attendee the opportunity to discuss topics and share key ideas.
Continue Page 2
Page 2
Martinez Message Continued
Domestic Violence awareness was increased within each county by participating in Community Coordinated Response Teams (CCRT).
CCRT/VNC teams were founded in the belief that with increased community involvement, the war against violence can be won. These
programs were designed to help prevent domestic violence and assist by providing aid to victims of violence. We participated in public
events, such as: Take Back the Night and candlelight vigils for those that have suffered through this hideous crime. Any form of abuse
whether physical, neglect, sexual, emotional, or whatever category is inexcusable and will not be tolerated. Domestic Violence is a social
issue that affects individuals from all aspects of life. It is the responsibility of every one of us to come together within our communities
and join the FIGHT AGAINST VIOLENCE. I am very proud to announce the 13th Judicial District Attorney‟s Office was awarded a STOP
Grant as well as a Recovery Grant. It was received through the office on Violence against Women and U.S. Department of Justice. These
Grants allowed us to implement a Domestic Violence Unit within our district. We hired a trial attorney as well as a Victim Advocate dedicated to the prosecution of Domestic Violence cases. Every measure has been taken to increase prosecution. We have also aggressively
pursued stalking as a crime that violates a person‟s personal identity and privacy. Currently, Valencia County and Sandoval County have
joined forces to prosecute a perpetrator who has inflicted a victim in both counties. I am confident that our prosecutors will process
this case and make it public knowledge to let it be a lesson for any perpetrators.
As an educator the issue of truancy is of special concern to me so I became fully involved with each school district. Education is a critical
factor in everyone‟s life, career and future. By not encouraging our youth to attend, participate and increase their education will deny
them of important opportunities. I want to encourage and increase our youth‟s educational opportunities. This can be better accomplished with a communicative relationship between school administration, parents and teachers. A step in this direction is the Parent/
Teacher contract. It emphasizes the valued importance that „Each and every day counts‟. As role models to our youth we need to
strongly reflect that every day makes a difference. Unfortunately, this is not always followed and has forced the 13 th Judicial District to
take legal steps. Recently, several defendants pled guilty to the first offense The Compulsory School Attendance Act. This was accompanied by a fine, eight hours community service and 12 weeks of parenting classes. Any parent that does not comply will be subject to
prosecution if, after receiving written notice from the school that the student is a habitual truant, the parent knowingly allows the student to continue violating the Compulsory School Attendance Law.
In closing, I would like to leave you with some Holiday safety suggestions. The Holiday season is filled with happiness and celebration,
but it can also be a time of danger. Unfortunately, there are criminals who use the Holidays to target victims who may be distracted by
the busy season. Fortunately, many people like to give with an open heart to help others in need. It is better to give than receive, but you
don‟t want to be taken for a ride either. Before you donate money, wise up, ask questions and do your home work. If you see any suspicious activity or experience a possible threatening situation then contact local law enforcement immediately.
Charity Scams: Before you decide to open up your heart and give a donation investigate. Scam artists prey on older people especially
around the holidays, so help educate your elderly relatives and friends about signs of donation fraud. Ask questions about the organization‟s mission, make-up, tax-exempt status, yearly financial statement and other pertinent information. In particular, ask what percentage of your gift will go directly to the cause. If the solicitor won‟t give you these facts or at least point you in the right direction, it‟s
probably a scam. Donate only to organizations recommended to you by informed parties or those you‟ve researched personally. Be especially cautious about getting a charity donation request by email. If the charity contacts you online, write down all the information you
can find about it: email, address, name, and contacts, etc. If you are contacted by phone, ask questions about the organization and
whether or not you can call them back at a specific number. A legitimate charity will have answers to all your questions never give
money or personal information to a caller. Never give into pressure or ‘guilt trips about suggested donations’ or ‘requested minimum
contributions.
Automatic Teller Machine (ATM) Choose an ATM machine inside a store, the mall or a well lighted location. Protect your PIN number
by shielding it from anyone next to you. Do not throw the ATM receipt at the ATM location.
Shopping Whenever possible, shop during the daylight hours. Lock your vehicle in a secure well lit area. Try not to put packages in
your vehicle where they may be viewed by a potential prospective thief; out of sight out of mind is a good safety strategy. Wearing expensive jewelry can be an invitation to theft. Do not carry a purse or wallet if possible. Avoid carrying large amounts of cash. Even
though you are rushed and thinking about many things on your list, stay alert of your surroundings.
Strangers at Your Door Beware that criminals sometimes pose as couriers delivering gifts. During the holiday‟s it is not uncommon for
criminals to take advantage of the generosity of people. Donation scam approaches have been noted to solicit door-to-door for charitable contribution causes although there is NO charity involved. Never open your door to strangers especially at night. Having lights on
your front and back door will help defer unwanted intruders.
This year is drawing to an end. We will enter into the New Year 2010 making resolutions and go forward with a positive spirit. Yes, there
will be challenges, disappointments, and triumphs as any other year. But I feel very confident this will be the best year ever.
LEMUEL L. MARTINEZ, District Attorney
Legal Brief
Page 3
A Cautionary Tale
State of New Mexico vs. Matthew Alderete
Ct. App. No 28, 325
Final Appellate Decision
By: Bob Cates
([email protected])
Some of you may recall an article I wrote for the DA newsletter regarding a pending appeal on our case of
State of New Mexico v. Matthew Alderete and its impact on speedy trial analysis. On October 26 the State
Court of Appeal reviewed the case again after remand from the State Supreme Court requesting a re-analysis
in light of the Supreme Court‟s recent decisions in State v. Maddox 145 NM 242, 195 P.3d 1254; and State v.
Garza, 146 NM 499, 212 P3d 387. After initially reversing conviction on the basis that a Motion to Dismiss
on speedy trial grounds should have been granted by the District Court, upon re-review the Court of Appeals has now decided to uphold the conviction. We win!
In its original opinion the Court of Appeals reasoned that a nine-month delay in prosecution was presumptive prejudicial and triggered further Barker vs. Wingo speedy trial analysis. In the present case the
delay was ten months and eight days from indictment to plea. (The right to appeal speedy trial issues was
part of the plea agreement). In its original analysis the Court of Appeals found two of the four prongs of
Barker v. Wingo weighing “slightly” in favor of the defense, one slightly for the state and one a tie. The
Court found no defense claim of actual prejudice resulting from the delay. Nonetheless, based upon the 2 ½
factors suggesting prejudicial delay, the Court had overturned the conviction.
Upon further analysis and application of Maddox and Garza (two cases decided while Alderete was pending),
the Court of Appeals has since concluded the following:
1. Mere passage of time is not “presumptively prejudicial” but merely triggers an analysis under the
Barker v. Wingo four part test.
2. The new threshold is one year. (Applicable to cases initiated after August 13, 2007).
3. While preserving the general claim to speedy trial rights in its standard motions, the Defense had
brought no particular proof of prejudice resulting from the delay. (Note: Actual prejudice from delay
would not have required one year to elapse).
4. Further analysis under the four-part Barker v. Wingo test, or even the application of the Maddox
ruling is not required absent a suggestion of prejudice suffered by the delay when the case was re
solved within one year.
I have not heard if this will be a published opinion but I rather doubt it will be. I have copies for anyone who is having an issue and wants to compare the reasoning of the two Court of Appeals decisions, but
this decision provides far clearer guidance for prosecutors in the future.
Legal Corner
Page 4
Rule 5-604. Time of commencement of trial
A. Arraignment. The defendant shall be arraigned on the information or indictment within fifteen (15)
days after the date of filing of the information or indictment or the date of arrest, which ever is later.
B. Time limit for commencement of trial. The trial of a criminal case or habitual criminal proceeding shall
be commenced six (6) months after whichever of the following events occurs latest:
(1) the date of arraignment, or waiver of arraignment in the district court of any defendant;
(2) if the proceedings have been stayed to determine the competency of the defendant to stand trial,
the date an order is filed finding the defendant competent to stand trial;
(3) if a mistrial is declared or a new trial is ordered by the trial court, the date such order is filed;
(4) in the event of an appeal, including interlocutory appeals, the date the mandate or order is filed in
the district court disposing of the appeal;
(5) if the defendant is arrested or surrenders in this state for failure to appear, the date of arrest or
surrender of the defendant;
(6) if the defendant is arrested or surrenders in another state or country for failure to appear, the
date the defendant is returned to this state;
(7) if the defendant has been placed in a pre prosecution diversion program, the date of the filing with
the clerk of the district court of a notice of termination of a pre prosecution diversion program for
failure to comply with the terms, conditions or requirements of such program;
(8) the date the court allows the withdrawal of a plea or the rejection of a plea made pursuant to Para
graphs A to F of Rule 5-304.
C. Extensions of time in district court. For good cause shown, the time for commencement of trial may be
extended by the district court provided that the aggregate of all extensions granted by the district court
may not exceed six (6) months.
D. Extension of time by Supreme Court. For good cause shown, the time for commencement of trial may
be extended by the Supreme Court or a justice thereof.
E. Procedure for extensions of time. The party seeking an extension of time shall file with the clerk of the
court a verified petition for extension concisely stating the facts petitioner deems to constitute good
cause for an extension of time to commence the trial. If the petition is filed in the Supreme Court, the
statement of good cause shall include a statement of a definite trial date that the petitioner has already
obtained from the district court within the time period of the extension request. Upon request, the district court shall provide the parties with such a trial date. The petition shall be filed with in the applicable time limit prescribed by this rule, except that it may be filed within ten (10 days after the expiration
of the applicable time limit if it is based on exceptional circumstances beyond the control of the parties
or trial court which justify the failure to file the petition within the applicable time limit. A party seeking an extension of time shall forthwith serve a copy thereof on opposing counsel. Within five (5) days
after service of the petition, opposing counsel may file an objection to the extension setting forth the
reasons for such objection. No hearing shall be held except upon order of the court. If the court finds
that there is good cause for the granting if an extension beyond the applicable time limit, it shall fix the
time limit within which the trial must commence.
F. Effect of noncompliance with time limits. In the event the trial if any person does not commence
within the time specified in Paragraph B of this rile or within the period of an extension granted as provided in this rule, the information or indictment filed against such person may be dismissed with prejudice or the court may consider other sanctions as appropriate.
G. Applicability. This rule shall not apply to cases on appeal from the metropolitan, magistrate or municipal court.
[As amended, effective September 1, 1998; May 1, 200; as amended by Supreme Court Order 07-830018, effective August 13, 2007; by the Supreme Court Order No. 08-8300-052, effective November 24,
2008]
New Mexico Criminal and Law Traffic Manual, 2009
PROFILE
Page 5
HIGH PROFILE CASES
Cibola: State vs. Ricardo Johnson, Charges: Armed Robbery
Arlene Krippene, Charges: Extreme Animal Cruelty
Shawn Longoria, Charges: Aggravated Battery (great bodily
harm)
Danny Stanfield, Charges: Murder (1st degree)
Mychael Rodriguez, Charges: Fraud (over $2500) (8
counts), Racketeering, Forgery (2 counts), Extortion (2 counts)
Photo taken at Tombstone
LESLIE R. HERBST (LES)
Senior Trial Prosecutor
Cibola County
Leslie R. Herbst, Senior trial Attorney,
has been working in the Grants, Cibola
County office since May 7, 2007. Les
earned his Juris Doctor Degree at the
State University of New York at Buffalo
School of Law in 1978 and been in private practice in Houston, San Antonio
and Albuquerque. With thirty years legal
experience consisting of diverse civil and
criminal litigation.
Les has already
prosecuted from start to finish several
high profile white collar cases including
one recent case involving a local contractor who had been defrauding elderly and
retired residents by extorting money for
home improvement projects that were
never performed. In another case Les
prosecuted an elected officer of a local
fraternal organization who had embezzled
large sums of money from her organization. Recently, Les was elected President
of the Cibola County Bar Association.
When he is not prosecuting his cases, Les
teaches courses in Business Law and
Macroeconomics at University of New
Mexico Grants campus. In his spare time
Les is teaching himself to play jazz and
blues on his bass guitar. Les also likes to
take photographs of the glorious New
Mexico landscape. He has already had
two exhibitions of his photographs at the
Double 6 Gallery in New Mexico. Les has
been happily married to his beautiful wife
Anhar Botros, since 1995
Sandoval: State vs. Eric Madrid, Charges: Murder (1st degree)
State vs. Jose R. Martinez, Charges: Attempted (1st degree)
Murder
State vs. Felix Romero, Charges: CSP (1st degree) (child
under 13)
State vs. Gilbert R. Rael Charges: Aggravated Battery (with
great bodily harm)
Valencia: State vs. Luke Sanchez, Charges: Open count of
Murder
State vs. Cody Morgan, Charges: Tampering with Evidence
(Capital Crime or First or Second Degree Felony), Conspiracy to
Commit Tampering with Evidence (Capital Crime or First or
Second Degree Felony).
State vs. Richard Gonzales, Charges: Child Abuse Intentional (resulting in death), Assault upon a Peace Officer
State vs. Terri Gonzales, Charges: Child Abuse Intentional
(resulting in death)
State vs. Benjamin Hilburn, Charges: Murder (1st degree)
State vs. Jeremy Jaramillo, Charges: Abuse of a Resident
(physical or great psychological harm)
State vs. Stephen Norcott, Charges: Possession of Visual
Medium of Sexual Exploitation of Children under 18
State vs. Michael Perea, Charges: Child Abuse Intentional
(resulting in death), Tampering with evidence (capital Crime or
First or Second Degree Felony)
State vs. Isaac Saiz, Charges: Murder (1st degree)
State vs. Floyd Wynn, Charges: Aggravated Stalking
State vs. Gladys Vigil, Charges: Forgery (6 counts), Fraud (6
counts), Tampering with Public Records (6 counts), Embezzlement (6 counts) Computer Access with Intent to Defraud (6
counts)
State vs. Hope Gallegos, Charges: Aggravated Driving While
Under the Influence of Intoxicating Liquor or Any Drug (bodily
injury), Child Abuse Negligently Cause (great bodily harm)
Around the Water Cooler
Page 6
CCRT Meetings are held monthly in each county. (Please come join us)
Cibola County Victims Need Crystallized Meeting
1st Tuesday of every month, 11:30 am to 1:00 pm
Roberta‟s Place— 807 E. Roosevelt Ave. Grants NM
Guest Speaker for December Joseph Arite, Special Commissioner for District Court
Sandoval County Coordinated Community Response Team (CCRT) Meeting
2nd Wednesday of every month, 11:30 to 1:00 pm
Rio Rancho Police Department, 500 Quantum Rd., RR, NM
No December meeting
Valencia County Coordinated Community Response Team (CCRT) Meeting
3rd Tuesday of every month, 11:30 am to 1:00 pm
Los Lunas Magistrate Court 1206 Main St. NE LL, NM
ETIQUETTE FAUX PAS
Don’t make these common business etiquette mistakes!
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10 Holiday Money Mistakes:
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1.
Being blinded by Bargains
2.
Forgetting to Budget for extras
3.
Buying on Credit
4.
Not keeping Receipts
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5.
Spending to Impress
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6.
Over-Giving
7.
Giving in to Guilt Gift
8.
Failing to do your homework
9.
Procrastinating
10. Giving Fruitcakes
moneycentral.msn.com
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If you’re networking with a drink in your hand, always hold the drink in left
hand the whole time. You must keep the right hand free for shaking, and you
don’t want to offer a hand that’s cold and wet from a glass.
The guest should get the best seat at the table which is the seat that faces the
room—not the wall.
Let your guest order first. When it is your turn, order the same number of
courses as they have.
Keep the cell phone off the table. If you know you will be getting an important
phone call during the meal, let your guest know before the meal starts, and excuse yourself from the table to take the call.
If there’s a tablecloth and silverware on the table, don’t eat with your fingers.
But you can use your fingers to break off a piece of bread. (But asparagus may
be eaten with your fingers as long as it is not in a sauce!)
Never cut spaghetti with a knife. You must twirl in on your fork. (it is ok to use
a spoon to help you twirl.)
You can put you elbows on the table — as long as its before or after a meal.
Women: Don’t prop your head up with your hands while eating. Men: Don’t
throw your tie over your shoulder or tuck your napkin in your pants.
Never pick your teeth with a toothpick (or fingernails) at the table. And ladies
should never apply make up at the table.
No doggie bags at a business meal.
ALBUQUERQUE JOURNAL NOVEMBER 15, 2009
SOURCE: SONIA JACOBSON
Around the Water Cooler
Page 7
Upcoming Events
DECEMBER 2009
Winter Begins (21)
Christmas (25)
JANUARY 2010
New Year’s Day (1)
Martin Luther King Jr. Birthday (18)
New Mexico Legislature Begins (19)
Happy Birthday!
December
Ronda Sinclair (3)
Nettie Griego (4)
Jessica Anastasi (8)
Sadie Gallegos (14)
Relda Chavez (18)
January
HOLIDAY WORD SEARCH
Steven Scott (6)
Peter Ortega (9)
David Wertz (30)
Anna Ehresmann
(31)
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New Years
WWW.PuzzleMaker.com
Around the Water Cooler
Page 8
Around the District
Sandoval County Halloween Luncheon
Beverly Des Chenes, Yvonne Calderon,
Carmen Gonzales, Cheryl Johnston
and Amanda Rinaldi
Cibola County Food Drive
Sharon Valdez , Victim Advocate and
Carolyn Pope from Community Outreach
Valencia County Food Drive
With the help from Wal-Mart and our Valencia staff we were able to provide the Saiz
Family with a great Thanksgiving Dinner